United States v. Silva

decided: December 19, 1983.

UNITED STATES OF AMERICA, APPELLEE,v.MANOEL RODRIGUEZ DA SILVA, DEFENDANT-APPELLANT

Appeal from judgment of conviction entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, on both counts of an indictment charging appellant with intentionally importing cocaine, in violation of 21 U.S.C. §§ 952(a) & 960(a)(1), and knowingly possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

Mansfield, Kearse, and Winter, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Defendant Manoel Rodriguez Da Silva appeals from a judgment entered in the United States District Court for the Eastern District of New York, after a jury trial before Henry Bramwell, Judge, convicting him of unlawful importation of narcotics in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) (1976), and of unlawful possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). Da Silva was sentenced to two concurrent terms of ten years' imprisonment to be followed by a fifteen-year special parole term, and a cumulative fine of $20,000. On appeal Da Silva contends principally that the court erred in not treating testimony as to a United States Customs Service official's translation of statements by Da Silva to agents of the United States Drug Enforcement Administration ("DEA") as hearsay inadmissible under Fed. R. Evid. 801 et seq. Finding no merit in this contention or in any of Da Silva's other claims of error, we affirm.

BACKGROUND

On January 17, 1983, Da Silva arrived at John F. Kennedy International Airport on a flight from Rio de Janeiro, Brazil. Da Silva was traveling on a Brazilian passport, and apparently his native language is Portuguese. During routine questioning by a customs inspector, which was conducted entirely in English, Da Silva stated that he had come to New York on business and intended to stay for a week to ten days. In response to further questioning, Da Silva stated that he did not know the person with whom he was to do business, that he had no business card or other document identifying his business, and that he would have to find his business contacts by looking in the yellow pages.

When the customs inspector turned his attention to Da Silva's luggage, he discovered packages of white powder concealed in a false-bottomed coffee carton, in a box of American tissues, and in cartons of American cigarettes. Tests revealed that the powder was cocaine ranging between 95.8 and 98.8 percent in purity. In the midst of these discoveries Da Silva asked the customs inspector, still in English, "Is it all right if I go now?" Not surprisingly, he was denied permission to leave.

Da Silva was taken to a secondary examination room and DEA special agents were summoned to question him. Customs Inspectional Aide Mario Stewart, a certified Spanish interpreter who had been raised in Panama, went to the examination room to interpret during the DEA interview of Da Silva.

DEA Special Agent Raymond Tripicchio thereafter interrogated Da Silva, with Stewart translating the questions into Spanish and Da Silva responding in Spanish. According to Stewart's translations of Da Silva's answers, Da Silva claimed that he had come to the United States for a vacation, that he did not know cocaine was concealed in his luggage, and that a "Mr. Pedro" had packed the luggage containing the contraband as a gift for Mr. Pedro's American friends. Da Silva indicated that Mr. Pedro had paid for Da Silva's ticket in cash and had given him two to three thousand dollars for delivering the "gifts."*fn1 Da Silva also described a prior transaction involving Mr. Pedro, in which he had successfully delivered similar gifts of coffee and tobacco to Mr. Pedro's associates in Atlantic City. Da Silva refused to identify the associates.

Da Silva later repeated this story to DEA Group Supervisor Frank Cruz. Cruz is fluent in Spanish and interrogated Da Silva in that language without the need for an interpreter. Da Silva again indicated that Pedro had paid him two to three thousand dollars to deliver gifts to New York City, and again discussed the Atlantic City episode.

Da Silva was indicted on one count of unlawful importation of narcotics with intent to distribute, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and one count of unlawful possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Prior to trial, Da Silva moved to suppress the statements he had made to the customs inspector and the DEA agents. His motion was denied and he has not challenged this ruling on appeal. At trial, the government's evidence included the testimony of DEA agents Tripicchio and Cruz as to Da Silva's statements described above. The jury convicted Da Silva on both counts.

Discussion

On this appeal Da Silva raises several claims of error. Principally he contends that Tripicchio's testimony as to Stewart's translation should have been excluded because the testimony was hearsay or because the translation was too inaccurate to be trustworthy. In addition, Da Silva contends that he is entitled to a new trial because the court did not ensure that he received adequate translational assistance at trial and because it failed to exclude certain challenged items of evidence. ...

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